Department of Transp. v. Weisenfeld

• Decision Date: 26 March 1993
• Docket Number: No. 91-2234,91-2234
• Citation: 617 So.2d 1071
• Parties: 18 Fla. L. Weekly D803 DEPARTMENT OF TRANSPORTATION, Appellant, v. Joseph WEISENFELD, Trustee, Appellee.
• Court: Florida District Court of Appeals

Page 1071

617 So.2d 1071

18 Fla. L. Weekly D803

DEPARTMENT OF TRANSPORTATION, Appellant, v. Joseph WEISENFELD, Trustee, Appellee.

No. 91-2234.

District Court of Appeal of Florida Fifth District.

March 26, 1993.

Rehearing Denied May 17, 1993.

Thornton J. Williams, General Counsel and Thomas F. Capshew, Asst. Gen. Counsel, Tallahassee, for appellant.

Gordon H. Harris and G. Robertson Dilg of Gray, Harris & Robinson, P.A., Orlando, for appellee.

EN BANC

COBB, Judge.

The plaintiff below, Weisenfeld, alleged that the filing of a map of reservation by the Department of Transportation (DOT) constituted a temporary regulatory taking of his property entitling him to compensation. DOT denied the allegations, and raised various affirmative defenses.

Weisenfeld moved for a partial summary judgment on liability on the basis that DOT "must be liable as a matter of law for having temporarily inversely condemned Plaintiff's property." The trial court granted the motion, conditioned upon proof of ownership of the property in question.

In other words, the trial court held that, assuming the ownership of the property by Weisenfeld, there was, ipso facto, liability on the part of DOT for having merely filed the map. The trial court unequivocally found that Weisenfeld had been injured and must be compensated. The language of the trial court's order reads:

10. Having taken the Plaintiff's property from September 29, 1988 to June 1, 1990, DEPARTMENT OF TRANSPORTATION must now be required to compensate the Plaintiff for the value of that taking, plus damages caused by the taking and reasonable costs, including attorneys' and appraisers' fees incurred by Plaintiff in the instant action.

This summary adjudication by the trial court that compensation is due the plaintiff was not based upon a scintilla of proof in regard to damages supporting the motion--no depositions, no affidavits, no interrogatories, no sworn pleadings. Indeed, the only affidavit before the court was filed by the state to rebut any possible claim of ownership to a portion of land covered by the reservation map. See Allen v. Orlando Regional Medical Center, 606 So.2d 665 (Fla. 5th DCA 1992).

We reverse the instant summary judgment based upon our reading of First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, California, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987) and Joint Ventures, Inc. v. Department of Transportation, 563 So.2d 622 (Fla.1990).

In Joint Ventures the Florida Supreme Court affirmatively answered the certified question whether subsections 337.241(2) and (3), Florida Statutes (1987) ¹ unconstitutionally provided for an impermissible taking of private property without just compensation. It held that the statute in question was not an appropriate regulation under the police power but was "merely an attempt to circumvent the constitutional and statutory protections afforded private property ownership under the principles of eminent domain." Joint Ventures at 625. The court stated:

Generally, the state must pay property owners under two circumstances. First, the state must pay when it confiscates private property for common use under its power of eminent domain. Second, the state must pay when it regulates private property under its police power in such a manner that the regulation effectively deprives the owner of the economically viable use of that property, ⁶ thereby unfairly imposing the burden of providing for the public welfare upon the affected owner. ⁷

* * * * * *

Although regulation under the police power will always interfere to some degree with property use, compensation must be paid only when that interference It must be emphasized that Joint Ventures did not deal with a claim for compensation, but only with a constitutional challenge to the statutory mechanism. The mere "attempt" embodied in the mechanism to improperly acquire land in the guise of police regulation, thereby circumventing the procedural and substantive safeguards of Chapters 73 and 74, does not automatically equate with a compensible taking. Therefore, Joint Ventures does not support the conclusion, as contended by Weisenfeld, that the mere filing of a reservation map by DOT creates a cause of action on his part. ²

deprives the owner of substantial economic use of his or her property. In effect, this deprivation has been deemed a "taking." Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980); Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 138 n. 36, 98 S.Ct. 2646, 2666 n. 36, 57 L.Ed.2d 631 (1978). Thus, when compensation is claimed due to governmental regulation of property, the appropriate inquiry is directed to the extent of the interference or deprivation of economic use.

In First English, it was held that the Fifth Amendment to the United States Constitution requires governmental compensation as a remedy for temporary regulatory takings subsequently invalidated. Such compensation is due "where the government's activities have already worked a taking of all use of the property." First English, 482 U.S. at 322, 107 S.Ct. at 2389. The United States Supreme Court recently reaffirmed this standard. See Lucas v. South Carolina Coastal Council, --- U.S. ----, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992).

Our inquiry, then, must be directed to the extent of the interference or deprivation of Weisenfeld's economic use of his property. Joint Ventures at 625. Only if that interference deprived him of all or substantial economic use of his property would he be entitled to compensation. Moreover, the owner's affected property interest must be viewed as a whole. Keystone Bituminous Coal Association v. DeBenedictis, 480 U.S. 470, 497, 107 S.Ct. 1232, 1248, 94 L.Ed.2d 472 (1987); Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). The record before us reveals that no evidence whatsoever was adduced before the trial court to sustain a factual determination that Weisenfeld suffered such a substantial deprivation of the use of his property.

The result reached by the trial court is consistent with our recent opinion in Orlando/Orange County Expressway Authority v. W & F Agrigrowth-Fernfield, Ltd., 582 So.2d 790 (Fla. 5th DCA), rev. denied, 591 So.2d 183 (Fla.1991). For the reasons heretofore set forth in this opinion Moreover, Agrigrowth seems to equate the Florida Supreme Court's finding of unconstitutionality in respect to subsections 337.241(2) and (3), Florida Statutes (1987) with a taking of property if a reservation map is filed, irrespective of any further allegation or showing of damage to the owner. Joint Ventures simply does not say that.

and for those elucidated by the scholarly dissent of Judge Altenbernd in Tampa-Hillsborough County Expressway Authority v. A.G.W.S. Corporation, 608 So.2d 52 (Fla. 2d DCA 1992), we recede from Agrigrowth, which was an unfortunate opinion in several respects. For example, it asserts that a regulation effects a taking if it does not substantially advance a legitimate state interest. It cites, as support for this remarkably broad generalization, the case of Agins v. City of Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980). The language in Agins giving rise to this assertion in Agrigrowth related to the application of a general zoning law to particular property. In Agins, the United States Supreme Court determined that there was no taking and no entitlement to damages resulting from an ordinance placing the owner's land in a residential planned development and open space zone, thereby reducing the number of residences that could be constructed on the property.

We reverse the summary judgment entered below and certify conflict with Tampa-Hillsborough County Expressway Authority v. A.G.W.S. Corporation, 608 So.2d 52 (Fla. 2d DCA 1992).

REVERSED AND REMANDED for further proceedings consistent with this opinion.

DAUKSCH and W. SHARP, JJ., concur.

HARRIS, J., concurs and concurs specially, with opinion.

GRIFFIN, J., concurs and concurs specially, with opinion.

GOSHORN, C.J., PETERSON and DIAMANTIS, JJ., dissent, with opinion.

HARRIS, Judge, concurring specially.

I concur, but for different reasons, with Judge Cobb's opinion that the summary judgment in this matter must be reversed. I write because the issue relating to the effectiveness of an invalid statute has not been covered. ¹

The dissent starts from the perspective that the recording of the map was a "taking" and has caused at least nominal damages to the landowner, thereby entitling the landowner to a remedy. It latches onto Joint Ventures as a basis for finding that inverse condemnation is that remedy. ²

I start by examining what the State did, the legal and practical effect of the State action, the effect that such action may have had on the landowner, and the remedy, if any, that might be appropriate. Neither I nor the other members of the majority assume that damages, even nominal, occurred. And I, just as fervently as the dissent, grab onto Joint Ventures--but for the proposition that inverse condemnation may not be the remedy even if the landowner is entitled to relief.

THE STATE ACTION

What the State did was to record a map pursuant to a state statute which had the intended purpose of controlling future development of affected property for a substantial period of time.

THE LEGAL EFFECT OF THE ACTION

The statute, and therefore the map, had no legal effect. The statute was held unconstitutional because it was beyond the authority of the legislature to enact. Its legal effect is as though it never existed. ³ As a matter of law, the statute and the map could not prevent development of any of the affected property. If this proposition is accepted, then it must be agreed that the only basis for a judgment against the State is either to punish the State for its audacity in attempting this process or else to compensate the...